The Third Circuit Provides Guidance On Thorny FMLA And ADA Issues

The United States Court of Appeals for the Third Circuit's recent decision in Erdman v. Nationwide Insurance Co.1 No. 07-3796 (Sept. 23, 2009) provides much-needed guidance to employers on several Family and Medical Leave Act (FMLA) and Americans with Disabilities Act (ADA) issues including : (1) how to analyze FMLA hours eligibility when the employee claims off-the-clock work, (2) what is considered a protected activity for purposes of an FMLA retaliation claim, and (3) how the ADA applies to employees who request leave to care for a disabled family member.

Factual Background Nancy Erdman was a long-term employee of Nationwide Insurance Company. In 1998, she began working part-time in order to care for her disabled daughter. When she worked extra hours outside of the office, her supervisor allowed her to take compensatory time off ("comp time"). During 2002-2003, Erdman alleged that the following events occurred:

In early 2002, Erdman switched to a four-day schedule, was reclassified as nonexempt, and her supervisor told her to "put in the hours that . . . you're supposed to put in and nothing more than that." In September 2002, Erdman e-mailed her new supervisor, asking if she could still work extra hours in exchange for comp time. Her supervisor did not respond. In January 2003, Erdman appeared to have exceeded her allotment of vacation days, but she explained that her days off had been covered by comp time, not vacation time. Her explanation was accepted. In late January 2003, Erdman was told that her overtime was not approved, and she should stop doing fieldwork. In early February 2003, Erdman was told that she could not work extra hours in exchange for comp time. Shortly thereafter, the company told Erdman that her part-time position would be eliminated, but she could work full time. On April 14, 2003, Erdman returned to a fulltime schedule, and Nationwide claimed that she was disgruntled and was difficult in the office. On April 21, 2003, after being told that she could not take the month of August off as vacation (she typically took this month off to prepare her daughter for school), Erdman submitted a request for FMLA leave for July and August 2003. She was told by the Human Resources representative that FMLA probably would not be a problem. On May 9, 2003, Erdman's employment was terminated after she used profanity during a phone conversation that was monitored for quality control purposes. This conversation occurred two months before she was to take FMLA...

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